Ethics and Anti-Corruption Commission, EACC

 

 

Open. Accountable. Responsible

 

Contents
Introduction

Authority

Can directly prosecute corruption crimes and confiscate money or wealth that was obtained corruptly.

Roles and Functions

Prevent corruption, educate the public on corruption and its prevention.

Composition

Five Commissioners to serve at the EACC, led by a Chair.

 

 

Introduction

 

 

eacc--new-logo from eacc.go.ke

 

Most historians, public commentators, policy makers, social scientists and other experts are of the view that corruption is the single most important contributor to poor governance in the past in Kenya. Corruption has frustrated the people's aspirations for a life in which merit, equity and justice is a way of life. The establishment of a body to lead the fight against corruption began way back in the 1990s with the formation of the toothless and ineffective Kenya Anti-Corruption Authority, KACA. KACA was disbanded by a constitutional court to be replaced by the KACC or Kenya Anti-Corruption Commission which did not achieve anything either.

The New Constitution has established an independent Commission, the Ethics and Anti-Corruption Commission EACC, to lead the fight against corruption in all sectors - economic, social and political but perhaps more importantly, to set the integrity bar for all and especially for officers in the Public Service. Indeed, the very process of appointment of its first chair in May of 2012, was soon the subject of a petition in the High Court. The Court set aside the appointment while ruling that both the Selection Panel and the National Assembly failed to investigate adequately the allegations made against the integrity of the nominee for Chair of the Commission. However in July 2013, the Appeals Court overturned the lower Court's judgment saying that the Judges exceeded their mandate by failing to maintain the separation of powers.

Public expectations are however at an all-time high on the EACC to deliver on its mandate largely because the Commission has come in together with the widely-popular Constitution of Kenya 2010.

 

Authority

 

The Ethics and Anti-Corruption Commission has constitutional authority of an Independent Commission as defined in Chapter 15's Article 248. This means, the Commission is fully independent since it has been granted the same status and powers of a Constitutional Commission. Chapter 6 - Leadership and Integrity, Article 79 states in part:

79. Parliament shall enact legislation to establish an independent ethics and anti-corruption commission, which shall be and have the status and powers of a commission under Chapter Fifteen, .......

To provide for checks and balances, the EACC must report to the President and Parliament, on its activities and financial statements at least once each year. These published reports will of course be appropriately publicised. Article 27 of the Act:

27. (2) The Commission shall submit the annual report to the President and the National Assembly .......
(3) The annual report shall contain, ........ (a) the financial statements of the Commission; (b) a description of the activities of the Commission; (d) any recommendations made by the Commission to State departments or any person and the action taken; (e) the impact of the exercise of any of its mandate or function; (f) any impediments to the achievements of the objects and functions under the Constitution, this Act or any written law; ........
(4) The Commission shall cause the annual report to be published and the report shall be publicized in such manner as the Commission may determine.

Indeed, the EACC, in May 2013, submitted to the National Assembly, its first quarterly report following the March 2013 general elections.

 


 

 

Roles and Functions

 

Chapter 6 of the New Constitution addresses Leadership and the requisite levels of Integrity expected of all State and Public Officers. It is to the EACC that the people of Kenya look up to, to ensure full compliance to high standards of Integrity by all public officers especially during recruitment into office. The Commission is also expected to enforce those standards through constant monitoring and evaluation of performance among public servants. Chapter 6 - Leadership and Integrity:

79. Parliament shall enact legislation to establish an independent ethics and anti-corruption commission, ........ for purposes of ensuring compliance with, and enforcement of, the provisions of this Chapter.

Consequently, the EACC was established pursuant to Article 79, by the enactment of the Ethics and Anti-Corruption Commission Act of 2011. The Commission must set the tone early in the public's eyes and more so among public servants on what constitutes best practice in service delivery and consumption i.e., a code of conduct for everyone whether in private or public service and what it all means in light of national values and principals of good governance. In other words, the Commission must execute civic education and frequent public campaigns on how corruption looks like and what its evil effects are, and how to avoid and expose corrupt practices. Further to that, the Commission must diligently and fairly and without fear, enforce the code of conduct on integrity and anti-corruption. 

To properly carry out its mandate of development and promotion of standards and best practices in integrity and anti-corruption, the EACC must first of all, familiarise itself with the systems, procedures and processes in all public offices and continuously monitor the same in order to

31. "....... detect corrupt practices and to secure the revision of methods of work or procedures that may be conducive to corrupt practices." (Ethics and Anti-Corruption Commission Act of 2011).

The Commission must cooperate with other Commissions, State organs and agencies that foster good governance, law and order. Hence, the EACC is a sort of master advisor to other Commissions and Independent Offices on the code of conduct within their jurisdictions. To this end, the Commission is empowered by Article 252 of the New Constitution to investigate any integrity and corruption issues that may be raised from time to time. Chapter 15 - Commissions and Independent Offices:

252. (1) Each commission, and each holder of an independent office— (a) may conduct investigations on its own initiative or on a complaint made by a member of the public;

Further to that, the EACC is mandated by the Act, to push for the prosecution of offenders and to recommend and advise on disciplinary measures to be taken against Public Service officers who fail the ethics test. Article 11 of the Act, excerpts:  

11. (1) ....... the Commission shall— (d) investigate and recommend to the Director of Public Prosecutions the prosecution of any acts of corruption or violation of codes of ethics or other matter prescribed under this Act or any other law enacted pursuant to Chapter Six of the Constitution: (e) recommend appropriate action to be taken against State officers or public officers alleged to have engaged in unethical conduct;

The EACC Act of 2011, has expressly allowed the EACC, through the Courts, to recover, freeze or confiscate property that is proved to have been acquired corruptly or unethically:

11. (1) ....... the Commission shall— (k) institute and conduct proceedings in court for purposes of the recovery or protection of public property, or for the freeze or confiscation of proceeds of corruption or related to corruption, or the payment of compensation, or other punitive and disciplinary measures."

Some of the provisions of Chapter 6 that the Commission must seek to enforce compliance with, are bound to drastically change the status quo. For example, it was common practice in the past, for State officials to hold more than one jon - a clear conflict with their public positions. Going forward therefore, a State officer cannot hold 2 such jobs. Article 77 of the New Constitution:

77. (1) A full-time State officer shall not participate in any other gainful employment.

Senior public officers cannot be active political party operatives either as that may compromise their impartiality and independence in the discharge of their duties:

(2) Any appointed State officer shall not hold office in a political party. 

The above twin provisions are designed to ensure there are no conflicts of interest among serving State Officers. 

The EACC is expected to monitor financial dealings of State officers to assure that they do not receive 'thank you' gifts from the public or business community or keep foreign bank accounts in circumstance that are outside of the law:

76. (2) A State officer shall not— (a) maintain a bank account outside Kenya except in accordance with an Act of Parliament; ...... .

Finally, the EACC must keep a keen eye on the politically sensitive process of public recruitment with a view to ensure that such a process is based on and conducted purely on grounds of merit:

73. (2) The guiding principles of leadership and integrity include— (a) selection on the basis of personal integrity, competence and suitability, or election in free and fair elections; (b) objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices.

 


 

 

Composition and Tenure 

 

mumo matemu chair of anti-corruption commission

Mumo Matemu, immediate past Chair of the Ethics and Anti-Corruption Commission

 

 

The Ethics and Anti-Corruption Commission had a Chair, and three other Commissioners, appointed in May 2012 for a single term of 6 years. However, as noted in the introduction part of this article, the appointment of the Chair, Mumo Matemu, was delayed by a petition in the High Court touching on his integrity and could not be effected until August 2013 when the Court of Appeal upheld the decision of the lower court and confirmed his suitability to hold office.

As it turned out, Matemu's tenure was rarely out of the public eye with one negative allegation following the other. At one time in September 2014, two of the Commissioners including the Vice Chair, had written to the President saying the Chair was unfit to hold office. In March 31 2015, another of the Commissioners had resigned her position citing divisions within the agency.

Matters came to a head in April 2015 when the National Assembly voted to remove both he and his Vice Chair. The President promptly suspended the two bosses and appointed a Tribunal to look into their conduct.

Oddly, during the vetting of the same Commissioners in 2012, the Departmental Committee on Justice and Legal Affairs of the then Tenth Parliament, had found that the 3 (the Chair was not among them), "....... lacked passion, initiative and the drive to lead the fight against corruption in this country. The nominees did not demonstrate sufficient interest in the fight against corruption.......".(Hansard, April 22, 2015 Afternoon).

In July 2015, the Commission on Administrative Justice CAJ raised objections to the Ethics and Anti Corruption Commission (Amendment) Bill 2015, passed on the 9th of July by the National Assembly ostensible to restructure the EACC in a bid to cure its short but messy existence. Said the CAJ in an Advisory: "The Ethics and Anti-Corruption Commission has had challenges right from its establishment which was manifested in the appointment of the Commissioners and the challenges in working relationship among the Commissioners inter-se and also with the Secretariat."

Believing that the legislators were off the mark, the Advisory was unequivocal, "These challenges cannot be attributed to structural framework of the institution......(as) other Commissions similarly structured have not experienced similar issues. It is our opinion that it is not a sound practice to amend the law by restructuring a State Organ simply because the individuals who held office did not perform or that others who can perform have been differently designated. In our view, there is no problem with the structure of EACC. Historical hitches in appointment, incompatibility of individuals or individual questions of integrity are not reasons to restructure.Advisory Opinion on the Proposed Restructuring of the EACC - July 2015.

Others such as the Commission for the Implementation of the Constitution CIC seeing mischief on the part of the National Assembly in passing the controversial Bill, said that it was, "........ aimed at paralyzing ongoing investigations by the anti-graft body."

Thankfully on the 5th of August 2015, the President declined to assent to the Bill.

 

 


 

References:

1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.

2. The Ethics and Anti-Corruption Commission Act of 2011. National Council for Law Reporting. The Attorney General.

3. Petition 229 of 2012. MUMO MATEMU V TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & 5 OTHERS[2013] eKLR. National Council for Law Reporting. The Attorney-General.

4. Civil Appeal 290 of 2012. MUMO MATEMU V TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & 5 OTHERS[2013] eKLR. National Council for Law Reporting. The Attorney-General. 

5. Hansard Report April 22, 2015 Afternoon. Website of The National Assembly. Accessed May 2015.

6. Advisory Opinion on the Proposed Restructuring of the EACC. Commission on Administrative Justice. 

 

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